In spite of the recent Second District Appellate Court decision in Sacksteder v. Senny, 2012 Ohio 4452 (2012), which declined to adopt the more stringent pleading standards set out by the U.S. Supreme Court in Bell Atlantic v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009), it is still possible to get inadequately pled complaints dismissed via a motion to dismiss or for judgment on the pleadings. Coolidge Wall recently succeeded in having an intentional infliction of emotional distress count dismissed in a discrimination suit because the plaintiff had not pled facts sufficient to demonstrate the requisite “extreme and outrageous” conduct exceeding “all possible bounds of decency.” The court ruled that terminating an at-will employee, even if there were allegations of discrimination involved, did not automatically rise to the level of a viable intentional infliction of emotional distress case. Rather, the court held that since the harm identified by the plaintiff “is limited to that produced by her discharge,” the plaintiff had alleged nothing that could provoke the level of outrage necessary to sustain a claim for intentional infliction of emotional distress.
There is no doubt that successful motions for judgment on the pleadings or motions to dismiss are more difficult given the Sacksteder decision. However, as the recent decision demonstrates an aggressive and carefully thought out Motion to Dismiss can still be successful. A defendant’s counsel should carefully analyze the facts alleged to determine whether the allegations, if proven, meet the prima facie elements of the cause of action. If not, a Motion to Dismiss is still a tool which can be used.